NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAA GHASSOUB OBEID,

Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 21

- 865 Agency No. A095

- 282

- 938

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 19, 2023

Phoenix , Arizona
Before: TALLMAN, OWENS, and BADE, Circuit Judges

. Dissent b y Judge OWENS.
Alaa Ghassoub Obeid , a native and citizen of Lebanon, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen removal proceedings

. Although Obeid’s motion to reopen was both time and number barred, see 8 U.S.C. § 122 9a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2) , he argues that those limitations should have be en equitably tolled because his prior immigration counsel was ineffective

. We have jurisdiction under 8 U.S.C. § 1252

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAY 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 21

- 865

and review the BIA’s denial of a motion to reopen for abuse of discretion.
Hernandez

- Ortiz v. Garland , 32 F.4th 794, 800 (9th Cir. 2022). “ Under this standard of review, we must uphold the agency ’ s decision unless it is ‘ arbitrary, irrational, or contrary to law. ’” Id . (quoting Agonafer v. Sessions , 859 F.3d 1198, 1203 (9th Cir. 2017)). We deny the petition.
Obeid came to the United States on a student visa in 2001 and married a U.S. citizen in 2002. In 2003, O beid was indicted for conspiracy to commit money laundering and fell out of legal status because he failed to maintain the full course of study required by the visa

. DHS initiated removal proceedings and

a n immigration judge ( “ IJ ” ) ordered Obeid removed in 2005. By 2006, Obeid had been without legal status in the United States for more th an one year. Obeid appealed to the BIA and our c ourt, and also sought an adjustment of status based on his marriage

. In the course of Obeid’s appeals , the ind ictment was dismissed pursuant to a plea agreement and his wife divorced him. In 2016, we remanded for the BIA to determine whether Obeid’s divorce invalided his application for an adjustment of status. Obeid v. Lynch , 658 F. App’x 300, 301 (9th Cir. 201 6). Before the BIA, Obeid moved for remand to the IJ. In 2017, t he
BIA denied the motion and held Obeid was ineligible to adjust his status but gave him 60 days to voluntarily depart the United States under 8 U.S.C. § 122 9c(b)(1). Obeid failed to depart

. Obeid argues he was prejudiced by his former counsel’s failure to properly address the voluntary departure order, as his failure to depart resulted in the3 21

- 865

imposition of a ten

- year bar to adjustment of status. See 8 U.S.C. § 1229c(d)(1)(B). A claim of ine ffective assistance requires a show ing that
counsel ’s performance was deficient and that the deficient performance caused prejudice. 1 Singh v. Holder , 658 F.3d 879, 88 5 (9th Cir. 2011). P rejudice exists when “ counsel ’ s performance was so inadequate that the outcome of ‘ the proceeding may have been affected by the alleged violation. ’ ” Hernandez

- Ortiz , 32 F.4th at 80 1 (quoting Grigoryan v. Barr , 959 F.3d 1233, 1240 (9th Cir. 2020)).
Th e converse is equally true: prejudice does not exis t “ when the alien lacks plausible grounds for relief. ” Singh , 658 F.3d at 887. Here, the BIA did not abuse
its discretion in declining to reopen Obeid’s case b ecause Obeid cannot show he was prejudiced by former counsel’s performance.
Obeid cites Singh , 658 F.3d at 886, for the proposition that former counsel
sh ou ld have sought to stay the voluntary departure period. T he BIA has no authority to stay or toll the voluntary departure period. See 8 C.F.R. § 1240.26(e)(1); Dada v. Mukasey , 554 U.S. 1, 19 (2008)

. Our d ecision in Singh
rested on our equitable authority to stay the voluntary departure period. See 658 F.3d at 879. But the adoption of 8 C.F.R. § 1240.26 (i) in 2008 abrogated that authority. Garfias

- Rodriguez v. Holder , 702 F.3d 504, 524

– 25 (9th Cir. 2012)

1 Obeid argues the BIA erred by finding that he failed to substantially comply with the procedural requirements for an ineffective assistance claim set out in Matter of Lozada , 19 I. & N. Dec. 637 (BIA 1988). But even assuming that Obeid substantially complied with Lozada , he must still establish the substantive elements of ineffective assistance , Hernandez

- Ortiz , 32 F.4th at 801 , which requires a showing of prejudice

.4 21

- 865

(en banc). When the BIA denied Obeid’s motion in 2017, it was no longer possible to seek a stay of the voluntary departure period.
Former counsel could have withdrawn Obe id’s request for voluntary departure, filed a motion to reopen, o r filed an appeal, but doing so would have automatically terminated the grant of voluntary departure and exposed Obeid to
immediate removal. Dada , 554 U.S. at 20

– 21 ; 8 C.F.R. § 1240.26 (e)(1), (i)

. Obeid then would have been subject to a different ten

- yea r bar on adjustment of status under 8 U.S.C. § 1182(a)(9) (A) (ii). Alternatively, if former counsel ha d advised Obeid to comply with the voluntary departure order and leave the country, Obeid would have been subject to a ten

- year bar on adjustment of status
because he had accrued more than a year of unlawful presence. 8 U.S.C. § 1182(a)(9)(B)(i)(II)

. Counsel’s performance was not prejudicial given that any action he took would have left Obeid “ in substantially the same position that [he] is in today .” See Hernandez

- Ortiz , 32 F.4th at 804. 2 Finally, the BIA did not abuse its discretion in denying Obeid’s instant motion to reopen because i neffective assistance is not grounds for lifting the voluntary departure bar unless an alien’s failure to depart was not “ voluntar y. ”
See Granados

- Oseguera v. Mukasey , 546 F.3d 1011, 1016 (9th Cir. 2008) ; Singh ,

2 Obeid also was not prejudiced by prior counsel’s failure to submit evidence about Obeid’s remarriage to his former wife. Obeid has failed to identify any evidence former counsel could have introduced regarding the bona fides of his marriage that existed at the time of his motion. That evidence did not become available until later when an approved Form I

- 130 was iss ued.5 21

- 865

658 F.3d at 887. The voluntariness exception is “narrow[]” and does not apply
unless an alien “is unaware of the voluntary depart ure order or is physically unable to depart.” Singh , 658 F.3d at 887 (quoting In re Zmijewska , 24 I. & N. Dec. 87, 94 (BIA 2007)). Unlike the petitioner in Singh , Obeid was indisputably
aware of the voluntary departure order: his affidavit states that he “ received a copy of the Board’s 2017 decision in the mail ” and “read through it.” Obeid
argues his failure to depart was not voluntary “because former counsel misadvised him about the voluntary departure order.” But a failure to depart is voluntary if t he “ petitioner was fully aware of the voluntary departure order but
remained in the United States in reliance on counsel ’ s erroneous advice .” See i d

. at 887 n.10 (citing Granados

- Oseguera , 546 F.3d at 1015

– 16).
Obeid and the dissent argue we should remand because t he BIA’s decision
failed to address the voluntary departure issue. However, where the result on remand is “necessary and certain” we “need not remand for the agency to reach that same conclusion because to do so ‘would be an idle an d useless formality.’”
Gutierrez

- Zavala v. Garland , 32 F.4th 806, 810 (9th Cir. 2022) (quoting NLRB v. Wyman

- Gordon Co. , 394 U.S. 759, 766 n.6 (1969)). We will not remand when our precedents and t he record establish that the BIA can not afford Obeid any

re lief from the voluntary departure bar and that Obeid would have been subject
to a ten

- year bar regardless of whether he had departed.
DENIED.Obeid v. Garland , No. 21

- 865

OWENS, Circuit Judge, dissenting: I respectfully dissent. The BIA abused its discretion because it failed to address Obeid’s argument that his attorney prejudiced him by ignoring the voluntary departure deadline and thereby creating a bar to adjustment of status.
Se e Singh v. Gonzales , 4 16 F.3d 1006, 1015 (9th Cir. 2005) . Specifically, the agency did not analyze whether the attorney’s conduct created an avoidable bar to relief or whether Obeid is still eligible for relief. The necessary conclusion of these analyses is not that Obeid can not show prejudice. As such, remand is not
futile , and I would remand for the BIA to analyze whether the attorney’s failure to consider the voluntary departure deadline prejudiced Obeid. 

# FILED

MAY 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS